Enforcement & Compliance FAQs

A concerted practice” means co-operative or coordinated conduct between firms, achieved through direct or indirect contact, that replaces their independent action, but which does not amount to an agreement.

An undertaking means any business activity intended to be carried on, or carried on, for gain or reward by a person, a partnership or a trust in the production, supply or distribution of goods or the provision of any service.

It applies to Horizontal Restrictive Trade Practices (agreements between undertakings, decisions by associations of undertakings, decisions by undertakings or concerted practices by undertakings which have as their object or effect the prevention, distortion or lessening of competition in trade in any goods or services in Kenya, or a part of Kenya) prohibited under section 21 and 22 of the Competition Act unless they are exempt in accordance with the provisions of Section D of Part iii.

Competition generally is a process in which producers or distributors, of goods and services, strive freely and independently to attract customers with a view to achieving specific economic goals, e.g. sales, profits or market shares. Therefore, competition is often described as rivalry based on prices, quantities, qualities, services, among others.

For enterprises, competition brings both opportunities and risks. It therefore follows that mistaken individual decisions are compensated on the market either by losses or profits/gains thereby forcing the players to exhibit high level of prudence. Competition therefore enhances efficiency, offers variety and high quality goods and services.

Although competition tends to result in price reductions, offers variety and better quality goods and services, it would, however, be more lucrative for the individual businesses to sell at higher prices. There is therefore an incentive for the companies to impede or eliminate competition, for example, through (a) agreements or (b) abusive practices. Policies and legislative frameworks in the form of competition policy/law are, therefore, prerequisite antidotes to such market distortions.

The Act defines “dominant undertaking” as an undertaking which controls not less than one-half of the total goods or services of any description supplied or rendered in Kenya or any substantial part thereof.

Limiting or restricting production, market outlets or market access, investment, distribution, technical development or technological progress through predatory or other practices.

Applying dissimilar conditions to equivalent transactions with other trading parties.

Making the conclusion of contracts subject to acceptance by other parties of supplementary conditions which by their nature or according to commercial usage have no connection with the subject-matter of the contracts

Section 21 of the Act prohibits Agreements between undertakings, decisions by associations of undertakings or concerted practices which have as their object or effect the prevention, distortion or lessening of competition.

Any undertaking or association of undertakings may apply to the Authority to be exempted in respect of prohibited agreement, Intellectual Property Rights or trade association by filling in appropriate forms available in the Authority’s website.

The application must be accompanied by such information as may be prescribed or as the Authority may reasonably require.

The Authority may grant an exemption if it is satisfied that there are exceptional and compelling reasons of public interest.

Any person who gives or discloses any material to the Authority may claim confidentiality, in terms of section 20 (2) of the Act by filling confidentiality claim form, in respect of the whole or any part of the material. The Confidentiality claim form is available in the Authority’s website.

In the case of oral evidence, the claim may be made orally at the time of giving the evidence and in all other cases it shall be in writing, signed by the person making the claim specifying the material and stating the reason for the claim.